People v. Burgos

• Docket Number: S274743
• Decision Date: 03 June 2024
• Citation: 321 Cal.Rptr.3d 377,548 P.3d 1024
• Parties: The PEOPLE, Plaintiff and Respondent, v. Francisco BURGOS et al., Defendants and Appellants.
• Court: California Supreme Court

321 Cal.Rptr.3d 377

548 P.3d 1024

The PEOPLE, Plaintiff and Respondent,

v.Francisco BURGOS et al., Defendants and Appellants.

S274743

Supreme Court of California.

June 3, 2024

Sixth Appellate District, H045212, Santa Clara County Superior Court, C1518795, C1756994, Cynthia A. Sevely and Helen E. Williams

Laurie Wilmore, under appointment by the Supreme Court; and Conrad Petermann, Ojai, under appointment by the Court of Appeal, for Defendant and AppellantFrancisco Burgos.

Jean M. Marinovich, under appointment by the Supreme Court, for Defendant and AppellantDamon Stevenson, Jr.

Solomon R. Wollack, Pleasant Hill, under appointment by the Supreme Court, for Defendant and AppellantJames Richardson.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Alice B. Lustre, Seth K. Schalit and J. Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Guerrero, C. J.

In 2021, the Legislature passed Assembly BillNo. 333 (2021-2022 Reg. Sess.)(Assembly Bill 333), known as the STEP Forward Act of 2021.(Stats. 2021, ch. 699, § 1.)Assembly Bill 333 amended Penal Code section 186.22 by imposing new substantive requirements relating to gang enhancements and the criminal offense of gang participation.¹(Stats. 2021, ch. 699, § 4.)Assembly Bill 333 also added section 1109, which provides that, if requested by the defense, a trial court must try a gang enhancement charge separately from the underlying offense.(§ 1109, subd. (a);Stats. 2021, ch. 699, § 5.)The statute likewise provides that gang-participation offenses must be tried separately from all other counts that do not require gang evidence as an element of the crime.(§ 1109, subd. (b);Stats. 2021, ch. 699, § 5.)

We granted review to determine whether section 1109’s provisions governing bifurcation apply retroactively to cases in which the judgment is not yet final.This question has divided the Courts of Appeal.(ComparePeople v. Burgos(2022)77 Cal. App.5th 550, 565-568, 292 Cal.Rptr.3d 587(Burgos)[concluding that § 1109 applies retroactively], People v. Montano(2022)80 Cal.App.5th 82, 105-108, 295 Cal.Rptr.3d 437(Montano)[same], People v. Ramos(2022)77 Cal.App.5th 1116, 1128-1131, 293 Cal.Rptr.3d 170(Ramos)[same] with People v. Boukes(2022)83 Cal.App.5th 937, 946-949, 300 Cal.Rptr.3d 1[concluding § 1109 does not apply retroactively], review grantedDec. 14, 2022, S277103(Boukes), People v. Perez(2022)78 Cal. App.5th 192, 207, 293 Cal.Rptr.3d 358[same], review grantedAug. 17, 2022, S275090(Perez), People v. Ramirez(2022)79 Cal.App.5th 48, 65, 294 Cal.Rptr.3d 472[same], review grantedOct. 12, 2022, S275341(Ramirez).)

[1] Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise.This well-settled principle is codified at section 3 of the Penal Code and appears in other codes as well.(See, e.g., Code Civ. Proc., § 3;Civ. Code, § 3.)In In re Estrada(1965)63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948(Estrada), however, we held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply.(Id. at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

We conclude that the Estrada, inference of retroactivity does not extend to section 1109.Estrada’s principle of statutory interpretation infers retroactivity from statutory reductions in punishment, not from the type of prophylactic rules of criminal procedure embodied in section 1109’s bifurcation provisions.Accordingly, the general presumption of prospective-only application applies to section 1109.The equal protection clauses of the federal and state Constitutions (U.S. Const., 14th Amend.;Cal. Const., art. I, § 7, subd. (a)) do not compel a different result.Because the Court of Appeal concluded that section 1109 applies retroactively, we reverse its judgment.

I.Factualand Procedural Background

Around midnight on August 29, 2015, Francisco Burgos, Damon Stevenson, Jr., James Richardson, Derrik Lozano, and Gregory Byrd approached Gabriel Cortez and Danny Rodriguez near a convenience store in San Jose.A member of the group asked Cortez and Rodriguez where they were from, whether they"banged," and if they were from "Meadowfair," a criminal street gang.After Cortez and Rodriguez responded that they were from "right here," a member of the group responded, "Well, we’re Crip[s]."The group proceeded to rob Cortez and Rodriguez at gunpoint and threatened to shoot them unless they left immediately.Cortez and Rodriguez ran to Cortez’s home.

The People filed an information charging Burgos, Stevenson, Richardson, Lozano, and Byrd with two counts of second degree robbery.(§§ 211,212.5, subd. (c).)Each count also included gang enhancement and firearm enhancement allegations.(§§ 186.22, subd. (b)(1)(C),12022.53, subds. (b) & (e)(1).)Burgos, Stevenson, and Richardson (collectively, defendants) moved to bifurcate trial on the gang enhancements.²The trial court denied the requests.At trial, the prosecution presented evidence that the robberies were committed in association with a criminal street gang.

A jury found defendants guilty of two counts of second degree robbery and also found true the gang enhancement allegations.The trial court found true prior conviction allegations as to Burgos and Stevenson, and Richardson admitted his prior conviction.The court sentenced each defendant to 21 years of imprisonment.

While defendants’ appeals were pending, the Legislature passed Assembly Bill 333, which became effective January 1, 2022.(SeePeople v. Tran(2022)13 Cal.5th 1169, 1206, 298 Cal.Rptr.3d 150, 515 P.3d 1210(Tran).)Assembly Bill 333 amended section 186.22 by narrowing the definitions of " ‘criminal street gang,’ " "common benefit," and " ‘pattern of criminal gang activity,’ " and adding the requirement that gang members "collectively engage in" the "pattern of criminal gang activity."(§ 186.22, subds. (e)(1)-(2), (f) & (g).)These changes "ha[d] the effect of ‘increas[ing] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.’ "(Tran, at p. 1207, 298 Cal.Rptr.3d 150, 515 P.3d 1210.)Assembly Bill 333 also "added section 1109, which requires, if requested by the defendant, a gang enhancement charge to be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime."(Tran, at p. 1206, 298 Cal.Rptr.3d 150, 515 P.3d 1210.)

The Attorney General conceded that the amendments to section 186.22 apply retroactively, and that the true findings on defendants’ gang enhancement allegations must be vacated.(Burgos,supra, 77 Cal. App.5th at p. 563, 292 Cal.Rptr.3d 587;cf.Tran,supra, 13 Cal.5th at p. 1207, 298 Cal.Rptr.3d 150, 515 P.3d 1210[Assembly Bill 333’s substantive changes apply retroactively to all nonfinal cases under Estrada].)However, the Attorney General maintained that section 1109’s bifurcation provisions apply only prospectively.(Burgos, at p. 564, 292 Cal.Rptr.3d 587.)

A divided Court of Appeal held that section 1109 also applies retroactively.(Burgos,supra, 77 Cal.App.5th at pp. 564569, 292 Cal.Rptr.3d 587.)The majority concluded that the statute meets the criteria for retroactive application under the reasoning of Estrada,supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, because it "reduces the possible punishment for a class of persons [and] provides a possible ameliorating benefit to a class of criminal defendants."(Burgos, at p. 565, 292 Cal.Rptr.3d 587.)

We granted review, limited to the issue of whether section 1109’s bifurcation provisions apply retroactively to cases not yet final.

II.Discussion

Defendants contend that section 1109 applies retroactively, not just prospectively.Burgos also claims that applying section 1109 only prospectively would violate equal protection principles.We find both arguments unconvincing.

A.Section 1109’s Bifurcation Provisions Do Not Apply Retroactively 1.Language and Legislative History of Section 1109

Prior to the enactment of section 1109, trial courts were authorized, in their dis cretion, to bifurcate trials so that a gang enhancement allegation would be tried separately from a charged offense, when appropriate to avoid undue prejudice to the defense.(People v. Hernandez(2004)33 Cal.4th 1040, 1049, 16 Cal.Rptr.3d 880, 94 P.3d 1080(Hernandez).)This authority came from " ‘section 1044, which vests the trial court with broad discretion to control the conduct of a criminal trial.’."(Id. at p. 1048, 16 Cal.Rptr.3d 880, 94 P.3d 1080;see§ 1044["It shall be the duty of the judge to control all proceedings during the trial"].)Section 1109 now requires the trial court to bifurcate such trials if the defense so requests.

Section 1109 provides in relevant part: "(a) If requested by the defense, a case in which a gang enhancement is charged … shall be tried in separate phases as follows: [¶](1) The question of the defendant’s guilt of the underlying offense shall be first determined.[¶](2) If the defendant is found guilty of the underlying offense and there is an allegation of a[ ][gang] enhancement …, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement.… [¶](b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime.This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22."

In enacting Assembly Bill 333, the Legislature made several...